Social Security Administration
Refer To: Office of Disability Adjudication and Review
SSA ODAR Hearing Ofc
9th Floor
200 West Adams Street
Chicago, IL 60606
Date: February 24, 2012
Notice of Decision – Fully Favorable
I carefully reviewed the facts of your case and made the enclosed fully favorable decision. Please read this notice and my decision.
Another office will process my decision and decide if you meet the non-disability requirements for Supplemental Security Income payments. That office may ask you for more information. If you do not hear anything within 60 days of the date of this notice, please contact your local office. The contact information for your local office is at the end of this notice.
If You Disagree With My Decision
If you disagree with my decision, you may file an appeal with the Appeals Council.
How To File An Appeal
To file an appeal you or your representative must ask in writing that the Appeals Council review my decision. You may use our Request for Review form (HA-520) or write a letter. The form is available at https://www.ssa.gov/ Please put the Social Security number shown above on any appeal you file. If you need help, you may file in person at any Social Security or hearing office.
Please send your request to:
Appeals Council
Office of Disability Adjudication and Review
5107 Leesburg Pike
Falls Church, VA 22041-3255
Time Limit To File An Appeal
You must file your written appeal within 60 days of the date you get this notice. The Appeals Council assumes you got this notice 5 days after the date of the notice unless you show you did not get it within the 5-day period.
The Appeals Council will dismiss a late request unless you show you had a good reason for not filing it on time.
What Else You May Send Us
You or your representative may send us a written statement about your case. You may also send us new evidence. You should send your written statement and any new evidence with your appeal. Sending your written statement and any new evidence with your appeal may help us review your case sooner.
How An Appeal Works
The Appeals Council will consider your entire case. It will consider all of my decision, even the parts with which you agree. Review can make any part of my decision more or less favorable or unfavorable to you. The rules the Appeals Council uses are in the Code of Federal Regulations, Title 20, Chapter III, Part 404 (Subpart J) and Part 416 (Subpart N).
The Appeals Council may:
- Deny your appeal
- Return your case to me or another administrative law judge for a new decision
- Issue its own decision, or
- Dismiss your case
The Appeals Council will send you notice telling you what it decides to do. If the Appeals Council denies your appeal, my decision will become the final decision.
The Appeals Council May Review My Decision on Its Own
The Appeals Council may review my decision even if you do not appeal. If the Appeals Council reviews your case on its own it will send you a notice within 60 days of the date of this notice.
When There Is No Appeals Council Review
If you do not appeal and the Appeals Council does not review my decision on its own, my decision will become final. A final decision can be changed only under special circumstances. You will not have the right to Federal court review.
If You Have Any Questions
We invite you to visit our website located at https://www.ssa.gov/ to find answers to general questions about social security. You may also call (800) 772-1213 with questions. If you are deaf or hard of hearing, please use our TTY number (800) 325-0778.
If you have any other questions, please call, write, or visit any Social Security office. Please have this notice and decision with you. The telephone number of the local office that serves your area is (866)563-3899. Its address is:
Social Security
77 West Jackson Blvd.
Suite 300
Chicago, IL 60604-3600
Administrative Law Judge
Enclosure:
Form HA-L15 (Fee Agreement Approval)
Decision Rationale
162 W. Grand Ave.
Chicago, IL 60654
SOCIAL SECURITY ADMINISTRATION
Office of Disability Adjudication and Review
ORDER OF ADMINISTRATIVE LAW JUDGE
IN THE CASE OF CLAIM FOR
Period of Disability, Disability Insurance
_______________________ Benefits and Supplemental Security Income
(Claimant)
_______________________ __________________________________________
(Wage Earner) (Social Security Number)
I approve the fee agreement between the claimant and his representative subject to the condition that the claim results in past-due benefits. My determination is limited to whether the fee agreement meets the statutory conditions for approval and is not otherwise excepted. I neither approve nor disapprove any other aspect of the agreement.
YOU MAY REQUEST A REVIEW OF THIS ORDER AS INDICATED BELOW
Fee Agreement Approval: You may ask us to review the approval of the fee agreement. If so, write us within 15 days from the day you get this order. Tell us that you disagree with the approval of the agreement and give your reasons. You representative also have 15 days to write us if he or she does not agree with the approval of the fee agreement. Send your request to this address:
Sherry D. Thompson
Regional Chief Administrative Law Judge
SSA ODAR Regional Office
Suite 2901
200 W. Adams Street
Chicago, IL 60606-5234
Fee Agreement Amount: You may also ask for a review of the amount of the fee due to the representative under this approved fee agreement. If so, please write directly to me as the deciding Administrative Law Judge within 15 days of the day you are notified of the amount of the fee due to the representative. You representative also has 15 days to write me if he/she does not agree with the fee amount under the approved agreement.
You should include the social security number(s) shown on this order on any papers that you send us.
___________________________________
Administrative Law Judge
February 24, 2012__________________ Date
SOCIAL SECURITY ADMINISTRATION
Office of Disability Adjudication and Review
ORDER OF ADMINISTRATIVE LAW JUDGE
IN THE CASE OF CLAIM FOR
Period of Disability, Disability Insurance
_______________________ Benefits and Supplemental Security Income
(Claimant)
_______________________ __________________________________________
(Wage Earner) (Social Security Number)
JURISDICTION AND PROCEDURAL HISTORY
This case is before the undersigned on a request for hearing dated October 29, 2010 (20 CFR 404.929 et seq. and 416.1429 et seq.). The claimant appeared and testified at a hearing held on October 14, 2011, in Chicago, Illinois. __________, an impartial vocational expert, also appeared at the hearing. The claimant is represented by __________, an attorney.
The claimant is alleging disability since October 31, 1999.
ISSUES
The issue is whether the claimant is disabled under sections 216(i), 223(d) and 1614(a)(3)(A) of the Social Security Act. Disability is defined as the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment or combination of impairments that can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than 12 months.
With respect to the claim for a period of disability and disability insurance benefits, there is an additional issue whether the insured status requirements of sections 216(i) and 223 of the Social Security Act are met. The claimant’s earnings record shows that the claimant has acquired sufficient quarters of coverage to remain insured through November 30, 2013. Thus, the claimant must establish disability on or before that date in order to be entitled to a period of disability and disability insurance benefits.
After careful review of the entire record, I find that regarding his application for Title II benefits, the claimant has been disabled at all times from October 31, 1999 through the date of this decision. I also find that the insured status requirements of the Social Security Act were met as of the date disability was established. Additionally, I find that the claimant is disabled as to the Title XVI application filed April 22, 2010.
APPLICABLE LAW
Under the authority of the Social Security Act, the Social Security Administration has established a five-step sequential evaluation process for determining whether an individual is disabled (20 CFR 404.1520(a) and 416.920(a)). The steps are followed in order. If it is determined that the claimant is or is not disabled at a step of the evaluation process, the evaluation will not go on to the next step.
At step one, the undersigned must determine whether the claimant is engaging in substantial gainful activity (20 CFR 404.1520(b) and 416.920(b)). Substantial gainful activity (SGA) is defined as work activity that is both substantial and gainful. If an individual engages in SGA, he is not disabled regardless of how severe his physical or mental impairments are and regardless of his age, education, or work experience. If the individual is not engaging in SGA, the analysis proceeds to the second step.
At step two, the undersigned must determine whether the claimant has a medically determinable impairment that is “severe” or a combination of impairments that is “severe” (20 CFR 404.1520(c) and 416.920(c)). An impairment or combination of impairments is “severe” within the meaning of the regulations if it significantly limits an individual’s ability to perform basic work activities. If the claimant does not have a severe medically determinable impairment or combination of impairments, he is not disabled. If the claimant has a severe impairment or combination of impairments, the analysis proceeds to the third step.
At step three, the undersigned must determine whether the claimant’s impairment or combination of impairments is of a severity to meet or medically equal the criteria of an impairment listed in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 419.926). If the claimant’s impairment or combination of impairments is of a severity to meet or medically equal the criteria of a listing and meets the duration requirements (20 CFR 404.1509 and 416.909), the claimant is disabled. If it does not, the analysis proceeds to the next step.
Before considering step four of the sequential evaluation process, the undersigned must first determine the claimant’s residual functional capacity (20 CFR 404.1520(e) and 416.920(e)). An individual’s residual functional capacity is his ability to do physical and mental work activities on a sustained basis despite limitations from his impairments. In making this finding, the undersigned must consider all of the claimant’s impairments, including impairments that are not severe (20 CFR 404.1520(e), 404.1545, 416.920(e), and 416.945; SSR 96-8p).
Next, the undersigned must determine at step four whether the claimant has the residual functional capacity to perform the requirements of his past relevant work (20 CFR 404.1520(f) and 416.920(f)). The term past relevant work means work performed (either as the claimant actually performed it or as it is generally performed in the national economy) within the last 15 years or 15 years prior to the date that disability must be established. In addition, the work must have lasted long enough for the claimant to learn to do the job and have been SGA (20 CFR 404.1560(b), 404.1565, 416.960(b) and 416.965). If the claimant has the residual functional capacity to do his past relevant work the claimant is not disabled. If the claimant is unable to do any past relevant work or does not have any past relevant work, the analysis proceeds to the fifth and last step.
At the last step of the sequential evaluation process (20 CFR 404.1520(g) and 416.920(g)) the undersigned must determine whether the claimant is able to do any other work considering his residual functional capacity, age, education, and work experience. If the claimant is able to do other work, he is not disabled. If the claimant is not able to do other work and meets the duration requirement, he is disabled. Although the claimant generally continues to have the burden of proving disability at this step, a limited burden of going forward with the evidence shifts to the Social Security Administration. In order to support a finding that an individual is not disabled at this step, the Social Security Administration is responsible for providing evidence that demonstrates that other work exists in significant numbers in the national economy that the claimant can do, given the residual functional capacity, age, education, and work experience (20 CFR 404.1512(g), 404.1560(e), 416.912(g), and 416.960(c)).
FINDINGS OF FACT AND CONCLUSION OF LAW
After careful consideration of the entire record, I make the following findings:
- The Social Security Administration established a period of disability and disability insurance benefits Official for the claimant with an onset date of October 31, 1999.
- The claimant was sent a letter dated February 5, 2008 informing him that his disability had ended due to his work activity and that he was not entitled to payments for any period commencing September 2001 and continuing (Ex 3B of overpayment case).
- On August 17, 2008, the Social Security Administration issued a notice informing the claimant that he was overpaid Title II benefits in the amount of $145,355.20 starting September 1, 2001.
- After denial of his request for consideration on the issue of the overpayment, the claimant filed a request for hearing before an administrative Law judge, and the case came before me for hearing on October 14, 2011. Simultaneously, I entertained the issue regarding the newly filed application for Title II disability benefits.
- In view of my finding in the companion overpayment case that the claimant did not engage in substantial gainful activity from January 1, 2002 until present, and that a determination of medical improvement has not been made, the current claim for a period of disability and disability insurance benefits is superfluous.
- I hereby incorporate by reference the decision and record in the aforementioned overpayment case.
- Inasmuch as the claimant did not engage in substantial gainful activity from 2002-2008, because he received deferred compensation from commissions earned from 1998 until 2001, pursuant to an agreement with his employer, he was improperly credited with quarters of coverage for those years.
Pursuant to the regulations, for calendar years after 1977 an individual is credited with a quarter of coverage (QC) for each part of the total wages paid and self-employment income credited in a calendar year (20 CFR 404.143). A QC is the basic unit of social security coverage used in determining a worker’s insured status. The individual is credited with QC’s based on earnings covered under social security (20 CFR 404.140). Wages means remuneration paid to an employee for employment unless specifically excluded. If someone is paid wages, it is not important what they are called. Salaries, fees, bonuses and commissions on sales or on insurance premiums are wages if they are remuneration paid for employment (20 CFR 404.1041). In general, wages are deemed received by an employee at the time they are paid by the employer. Wages are paid by an employer at the time that they are actually or constructively paid. Wages are constructively paid when they are credited to the account of, or set aside for, an employee so that they may be drawn upon by the employee at any time although not then actually received (20 CFR 404.1042).
As reflected in the Programs Operations Manual System (POMS), RS (Retirement and Survivors Insurance), 01401.020, as a matter of policy, the Social Security Administration determines what payments are subject to Federal income tax withholding, Social Security and Medicare taxes. RS 01401.020. As stated above, pursuant to RS 01401.030, wages are paid when actually or constructively received, or when an economic benefit is derived.1 2 Constructive receipt occurs when the employee could have received the payment earlier than the time of actual receipt.
The claimant contends that the payments he has been receiving constitute deferred wages affidavit __________, CPA, he states at paragraph 10 that payment on commissions’ __________ by agreement with the claimant (Exhibit 16B).
_______________________
1 An economic benefit occurs when an employee gains an absolute right to wages in the form of a fund which has been irrevocably set aside for the employee and is beyond the reach of the employer’s creditors. An example is when payments are made from a deferred compensation plan that is funded through a trust (that does not qualify for IRS exempt status). There is no allegation that the funds for the claimant have been irrevocable set aside.
2 Additionally, there is no indication that the claimant’s compensation is a non-qualified deferred compensation plan under RS 01401.090 or a qualified deferred compensation plan which payments, nevertheless, are excluded from wages. Under qualified deferred compensation plans, employers should have an IRS ruling regarding the plan’s tax status (see also RS 01301.080, payments under a qualified deferred compensation plan are excluded from wages as well).
As a result, those wages constitute earned income when they could have been received had they not been deferred. The claimant could have received the payment earlier than the time of actual receipt. The claimant mutually agreed to defer payment on the commissions earned prior to 1999. The persuasive evidence of record indicates the claimant did not perform significant physical and/or mental activities in work for pay or profit, or in work of a type generally performed for pay or profit, that had an economic value after 2001, ergo from 2002-2008. Consequently, since the claimant did not perform significant physical and/or mental activities in work for pay or profit, or in work of a type generally performed for pay or profit, that had an economic value from 2002 through 2010, there can be no credits for quarters of coverage during those years for purposed of Title II benefits.
- I find that the claimant is a younger individual with a greater than high school education and prior work.
- Regarding the claim for Title XVI benefits, I find that based on the evidence of record before me, and as the amended alleged onset date of October 31, 1999, the claimant has the residual functional capacity to lift and carry 20 pounds occasionally and 10 pounds frequently, and can be on his fee stand/walking about 6 hours in an 8 hour workday and sit about 6 hours, with normal rest periods. He is unable to work at heights, climb ladders, or frequently negotiate stairs. He may only occasionally kneel or crawl. He should avoid concentrated exposure to extremes of temperature or humidity and should avoid operation of moving or dangerous machinery. Additionally, he would be unsuited for work that requires intense focus and concentration for extended periods. He would be expected to be off-task in excess of 10% of the time in an 8-hour workday.
The vocational expert testified that the claimant would not be able to perform his prior relevant work or any other work in the national economy as such work would exceed the off task time allowable in competitive employment.
DECISION
The claimant has been disabled at all times under sections 216(i) and 223(d), respectively, of the Social Security Act since October 31, 1999.
The claimant has been disabled under section 1614(a)(3)(A) of the Social Security Act based on the application filed April 22, 2010. I note that the claimant has been receiving substantial income during this period, in addition to the Title 2 benefits he is entitle to, although income derived from January 2002 until the present was not due to the claimant engaging in substantial gainful activity.
The component of the Social Security Administration responsible for authorizing supplemental security income will advise the claimant regarding the non-disability requirements for these payments, and if eligible, the amount and the months for which payment will be made.
_____________________________
Administrative Law Judge
February 24, 2012____________
Date
